A recent decision by the Appellate Division clarifies the New Jersey Open Public Records Act (OPRA) exception for proprietary commercial or financial information. The case also addresses what types of materials fall within the meaning of “underwriting rules” under N.J.S.A. 17:29A-46.2(b), which states that “underwriting rules” filed by insurers “shall be subject to public inspection.”
The Facts of the Case
In Gill v. New Jersey Department of Banking and Insurance, New Jersey Sen. Nia Gill, chairwoman of the Senate Commerce Committee, filed an OPRA request with the Department of Banking and Insurance. Sen. Gill sought documents concerning the rating criteria used by automobile insurers to determine premiums, relying on the declaration in N.J.S.A. 17:29A-46.2(b) that “underwriting rules” filed by insurers “shall be subject to public inspection.”
The Department turned over more than 3500 pages but concluded that other documents were exempt because OPRA does not require the production of government records containing “proprietary commercial or financial information,” which, if disclosed, would “give an advantage to . . . competitors.” Sen. Gill filed a complaint with the Government Records Council (GRC), which adopted an administrative law judge’s finding that the documents did not constitute “underwriting rules” and fell within the OPRA exception.
The Court’s Decision
The Appellate Division ultimately agreed with the GRC and the administrative law judge on both issues. It further rejected Gill’s argument that there was a conflict between the two laws.
With regard to whether the documents in question were underwriting rules, the court specifically agreed with the ALJ’s determination that in the absence of a clearer direction as to the meaning of “underwriting rules,” the Legislature could not have intended to render all materials relating to rate-making subject to public inspection. It held that Judge Masin correctly determined that the Legislature could not have intended “that each and every element of the entire manner and method of an insurer’s rate-making decision be publicly available,” concluding that if the Legislature possessed this intent, “it could have said so.”
The Appellate Division also concluded that the ALJ and the GRC were correct in finding that the documents were not accessible to the public under OPRA. As the court noted, “OPRA provides an exclusion for proprietary information, N.J.S.A. 47:1A-1.1, such as the materials in question.”
For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.